Non-Muslims required to seek redress in Syariah courts
Letter to Malaysia-Today.net by Tricia Yeoh, Centre for Public Policy Studies
The Centre for Public Policy Studies views with concern the recent majority decision of the Court of Appeal in Subashini v Saravanan where the Courts effectively required a non-Muslim to submit to the jurisdiction of the Syariah Court to have the theological laws of Islam applied to her in order to remedy unconstitutional orders from the Syariah courts in respect of their non Muslim marriage. In this ruling, the majority of the Court of Appeal also seem to have upheld the notion that one parent could convert an infant child to Islam without obtaining the consent of the other parent, and then go to the Syariah courts to get custody orders in respect of those infant children without the participation or consent of the non-Muslim spouse.
It is the Centre's view that requiring a non-Muslim to seek remedies in the Syariah courts is unconstitutional and unfair. The Federal Constitution of Malaysia clearly states that the Syariah courts have jurisdiction only over persons professing the religion of Islam. To subject a non-Muslim to the laws of Islam would be unfair as a non-Muslim does not profess that religion so as to require the non Muslim to be governed by theological rules of that religion. The Centre is also of the view that true parental equality requires that both parents consent to any change in religion of an infant child.
It is important to note that we live in a plural society where adherents of different faiths interact freely with one another. What maintains this balance of mutual respect is a system that recognizes and ensures equal justice for all citizens alike. The Constitution as supreme law of the land has provided such a system that affirms justice for Muslims and non-Muslims respectively.
The recent ruling by the majority of the Court of Appeal sets a worrying precedent for future cases. Referring a non-Muslim to the Syariah courts for judicial reliefs is tantamount to impeding the constitutional rights of non-Muslims to profess and practise their faiths in peace and harmony. Access to justice is denied. This is contrary to the spirit and constitutional context of the system that all Malaysians have hitherto enjoyed.
If the law as it stands means the civil courts are unable to grant remedies to the non Muslim spouse (something the Centre doubts), then it is high time legislative intervention makes it clear that any court applying a religious law can only exercise jurisdiction over persons professing that religion.
Article 6 - the right to a fair trial
Article 13 - the right to an effective remedy
Article 14 - prohibition of discrimination
Given the impact of human rights in the West, it is not surprising that many overseas-trained lawyers cannot be arsed to return to Malaysia and encumber themselves with this bullshit.
The Centre for Public Policy Studies views with concern the recent majority decision of the Court of Appeal in Subashini v Saravanan where the Courts effectively required a non-Muslim to submit to the jurisdiction of the Syariah Court to have the theological laws of Islam applied to her in order to remedy unconstitutional orders from the Syariah courts in respect of their non Muslim marriage. In this ruling, the majority of the Court of Appeal also seem to have upheld the notion that one parent could convert an infant child to Islam without obtaining the consent of the other parent, and then go to the Syariah courts to get custody orders in respect of those infant children without the participation or consent of the non-Muslim spouse.
It is the Centre's view that requiring a non-Muslim to seek remedies in the Syariah courts is unconstitutional and unfair. The Federal Constitution of Malaysia clearly states that the Syariah courts have jurisdiction only over persons professing the religion of Islam. To subject a non-Muslim to the laws of Islam would be unfair as a non-Muslim does not profess that religion so as to require the non Muslim to be governed by theological rules of that religion. The Centre is also of the view that true parental equality requires that both parents consent to any change in religion of an infant child.
It is important to note that we live in a plural society where adherents of different faiths interact freely with one another. What maintains this balance of mutual respect is a system that recognizes and ensures equal justice for all citizens alike. The Constitution as supreme law of the land has provided such a system that affirms justice for Muslims and non-Muslims respectively.
The recent ruling by the majority of the Court of Appeal sets a worrying precedent for future cases. Referring a non-Muslim to the Syariah courts for judicial reliefs is tantamount to impeding the constitutional rights of non-Muslims to profess and practise their faiths in peace and harmony. Access to justice is denied. This is contrary to the spirit and constitutional context of the system that all Malaysians have hitherto enjoyed.
If the law as it stands means the civil courts are unable to grant remedies to the non Muslim spouse (something the Centre doubts), then it is high time legislative intervention makes it clear that any court applying a religious law can only exercise jurisdiction over persons professing that religion.
* * * *
Is this what is happening in my country? First, I can't leave my house gates open for fear of my dogs getting beat up. Now, I have to be subject to the law of a religion that I don't profess to in the event that my (future) husband converts to Islam? In the UK this would make for highly litigious fodder. I can only think of the number of ECHR (or European Convention on Human Rights, which has been given statutory foundation as the Human Rights Act 1998) human rights that have been infringed -Article 6 - the right to a fair trial
Article 13 - the right to an effective remedy
Article 14 - prohibition of discrimination
Given the impact of human rights in the West, it is not surprising that many overseas-trained lawyers cannot be arsed to return to Malaysia and encumber themselves with this bullshit.
posted by Xian at
9:16 AM
1 Comments:
yup dear, this is wat's happening in msia. we have such cases all d time...nothing new, actually. if d constitution is upheld, these cases should be thrown outta d courts immediately coz there's nothing to argue about...d constitution prevails! frankly, the judicial system in msia doesn't look like it can b trusted to serve justice.
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Unknown, At
2:02 PM
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